State v. Ball

Berdon, J.,

dissenting and concurring in part. There is no question that the current Connecticut Hunter Harassment Act; General Statutes § SSa-lSSa;1 like its predecessor,2 “appear[s] by its terms to be content-neutral,” but is clearly “designed to protect hunters from conduct—whether verbal or otherwise—by those opposed to hunting.” Dorman v. Satti, 862 F.2d 432, 437 (2d Cir. 1988), cert. denied, 490 U.S. 1099, 109 S. Ct. 2450, 104 L. Ed. 2d 1005 (1989).

The legislature attempted to repair the statute by incorporating an element of intent. Nevertheless, as the defendants point out, a protestor can be convicted of violating the statute simply by voicing his or her opposition to the taking of wildlife in a manner that has the incidental effect of impeding or interfering with a hunter. During the debate on the floor of the House of Representatives, Representative Patricia A. Dillon described numerous hypothetical situations in an attempt to discern the line between conduct that could result in prosecution and conduct that would be exempt from prosecution. 33 H.R. Proc., Pt. 30, 1990 Sess., pp. 10,651-10,655. In response to one hypothetical situation, a proponent of the bill explained that the conduct had to be intentional and had to take place when someone was trying to hunt game. He further replied: “[I]f you went on that property, sat on a log, kept your mouth shut and didn’t wave your hands and kept quiet, you wouldn’t be [in violation] of this statute.” 33 H.R. Proc., Pt. 30, 1990 Sess., p. 10,653. The defendant argues that if the same person went into the woods to speak about “the joys of hunting and the sanctity of the rights of hunters, this expressive activity [would] not violate the Act.”

*280What is particularly troubling to me is that § 53a-183a (b) provides that “[a] person violates [the statute] when he intentionally or knowingly ... (2) blocks, impedes or otherwise harasses another person who is engaged in the process of lawfully taking wildlife . . . .” (Emphasis added.) The trial court’s attempt to narrow this broad sweeping text with limiting judicial gloss is inappropriate when the plain language of the statute is not susceptible to that construction. Dorman v. Satti, supra, 436. To suggest that the phrase “otherwise harass,” which could pertain to virtually any type of conduct, applies “only to ‘core criminal conduct’ . . . [is] tantamount to [having the court] ‘rewrite [the] statute.’ ” Id. “Clearly, this court lacks the authority to reshape public policy by construing a statute in a manner that alters its inherent meaning.” State v. Proto, 203 Conn. 682, 698, 526 A.2d 1297 (1987).

Relying on United States v. O’Brien, 391 U.S. 367, 383, 88 S. Ct. 1673, 20 L. Ed. 2d 672 (1968), the majority circumvents the legislative history of § 53a-183a by suggesting that a statute that is otherwise constitutional does not become invalid “on the basis of an alleged illicit legislative motive.” I disagree. As Professor Lawrence H. Tribe points out: “[T]he broad statement of the Court in O’Brien concerning the limited relevance of legislative motive in constitutional adjudication must be strongly qualified. In Washington v. Davis, [426 U.S. 229, 244 n.11, 96 S. Ct. 2040, 48 L. Ed. 2d 597 (1976)], Justice White wrote for the majority: ‘To the extent that [some of our cases suggest] a generally applicable proposition that legislative purpose is irrelevant in constitutional adjudication, our prior cases . . . are to the contrary.’ ” L. Tribe, American Constitutional Law (2d Ed. 1988) § 12-6, p. 825.

*281The legislative history of both the current statute and its predecessor indicates that the legislature intended, at least in part, to insulate hunters from expressive speech by persons opposed to hunting. See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 2, 1990 Sess., pp. 433-38, 497-501, 517-18, 523-24, 568, 615-16, 665-77; 33 H.R. Proc., Pt. 30, 1990 Sess., pp. 10,642-10,655; 33 S. Proc., Pt. 9, 1990 Sess., pp. 2857-58, and Pt. 10, pp. 3236-39; see also Dorman v. Satti, 678 F. Sup. 375, 377 n.2 (D. Conn. 1988).

Taking into consideration the text of § 53a-183a, its historic background and the legislative motive, I conclude that it is a content-based restriction. “For the State to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. The State may also enforce regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication. . . .” (Citations omitted; emphasis added; internal quotation marks omitted.) Dorman v. Satti, supra, 862 F.2d 437.

Although in Dorman v. Satti, supra, 862 F.2d 437, there was no “showing that protecting hunters from harassment constitutes a compelling state interest,” I believe that the state should be given an opportunity to demonstrate such an interest. The trial court precluded this showing by granting the defendants’ motions in limine. Accordingly, I agree with the majority that we should remand the case to the trial court, but I do not believe that the remand should focus on whether the legislation advances a significant state purpose. Rather, the trial court should determine whether the statute advances a compelling state interest, and if so, whether the statute is narrowly tailored *282to achieve that end and “leave[s] open ample alternative channels of communication. ” (Emphasis added; internal quotation marks omitted.) Id.

To some, the speech at issue, and the message it seeks to convey, may be considered annoying and, indeed, disturbing. Nevertheless, democracy requires that we have the right to express our thoughts on public land. “If all mankind minus one were of one opinion and only one person were of the contrary opinion, mankind would be no more justified in silencing that person than he, if he had the power, would be justified in silencing mankind .... If the opinion is right, they are deprived of the opportunity of exchanging error for truth; if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.” John Stuart Mill, On Liberty (1859). The first amendment of the United States constitution means exactly what it states—there shall be no law “abridging the freedom of speech.” The Connecticut Hunter Harassment Act, stripped of its garb, was enacted to suppress speech.

Accordingly, I agree that the case should be remanded to the trial court, but respectfully disagree on the test to be applied.

See footnote 1 of the majority opinion.

The first Connecticut Hunter Harassment Act, enacted in 1985, was held to be facially unconstitutional. Dorman v. Satti, 862 F.2d 432 (2d Cir. 1988), cert. denied, 490 U.S. 1099, 109 S. Ct. 2450, 104 L. Ed. 2d 1005 (1989).